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If there was ever an area in which Canada should follow the lead of the US it is on the issue of restoring due process to university sexual assault investigations..
Over the past few years, due process in university tribunals has been degraded in both countries. Many well-meaning efforts to improve outcomes for the victims of such crimes have resulted in the erosion of the rights of the accused. So much so, that it has become far too easy to make false accusations against which the accused will have very little ability to defend themselves.
How the US is Leading the Way
US Secretary of Education, Betsy DeVos, recently restored due process to the way university tribunals conduct their investigations and has rolled back the “Dear Colleague Letter” (DCL) which was instituted by the Obama administration. Under Obama, universities in the States were mandated to adopt policies under the DCL, with the threat that if they did not, they would lose their federal funding.
Essentially , this measure replaced the more robust “balance of probabilities”, with a “preponderance of the evidence” standard (50% plus a feather) in cases of sexual misconduct. Simultaneously, the definition of “sexual misconduct” was expanded to mean anything from an improper glance, to an offensive word, to full blown alleged assault.
Given the procedures as they were outlined in the DCL, it was very difficult for the accused to mount a defense, since they were denied the opportunity to see evidence against them, retain a lawyer, or confront their accusers with any level of cross-examination.
The result has been that thousands of university students were suspended or expelled, and many professors were fired or censored without due process. Since the advent of the DCL, sexual misconduct complaints rose from 17,724 in the period between 2000-2010 to 80,739 in the period from 2011-2020.
While many of these complaints may be meritorious, the inability to eliminate fabricated or exaggerated claims has both harmed innocent people and undermined confidence where there has been a finding of guilt..
Fortunately, despite four lawsuits being filed against Betsy DeVos and the Department of Education, the DCL has now been repealed and there are new guidelines in place. Due process is being restored and those accused of sexual misconduct are now receiving fairer treatment from their educational institutions.
Why Canada Must Follow Similar Steps
Although not bound by the same regulations as the US, Canada has found its system of due process being eroded in sexual assault cases as well. Canadian universities were mandated to adopt stand alone sexual assault policies that adopt the former US Title IX standards dictated by the DCL.
Complainants at universities may, and sometimes do, pursue charges through the criminal justice system. When an accused is facing expulsion from their university unless they comply with an unfair tribunal, it is even more important that they safeguard their rights to a fair trial.
With proper legal advice, an accused can negotiate better conditions and ensure that their participation in a university investigation meets a minimum standard of natural justice. The right of the accused to face their accusers and to have the full disclosure of the accusations against them is fundamental to due process.
With the future of an accused’s education at stake, the procedure and consequences of university tribunals need to be treated with appropriate gravity and a demand for fairness. No individual should participate in an investigation without proper legal representation and our educational institutions should not be transformed into a substitute for the proper administration of justice.
Contact Neuberger and Partners today
If you have been accused of sexual assault or misconduct, it is important that you retain a lawyer as quickly as possible to help you build your defense. Neuberger and Partners have experience in resolving university disputes which intersect with criminal allegations. Contact the team at Neuberger and Partners today.